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Click here for the full text of this decision FACTS:This is a post-conviction application for a writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure Article 11.07. In 1991, a jury convicted applicant of aggravated sexual assault of a child and assessed punishment at 30 years’ imprisonment. The conviction was affirmed on appeal. In this application applicant contends that newly discovered evidence shows that he is actually innocent. Following an evidentiary hearing, the trial court entered findings of fact and conclusions of law indicating that applicant is entitled to relief. HOLDING:Granted. Applicant was convicted of sexually assaulting his five-year-old daughter, who was eight years old at the time of the trial. The evidence presented against applicant at trial consisted of the following: the testimony of the complainant, the testimony of the complainant’s mother, the complainant’s torn dress (which the state alleged was torn by applicant during the assault), the testimony of the arresting police officer, and the testimony of the physician who examined the complainant. The court finds that the habeas court’s findings are supported by the record. The complainant’s new affidavit and testimony explain how she was intimidated and manipulated into making the accusations against her father. Her testimony is corroborated in part by the church bus driver’s testimony about the torn dress that was put into evidence at applicant’s original trial. The complainant’s mother’s testimony that she did not believe her daughter’s original explanation for the torn dress, but chose to seek an explanation that would confirm her suspicions about applicant, supports the complainant’s testimony about how the rest of the “outcry” came about. Presented with this evidence, in conjunction with the “completely normal” results of the medical examination, and the sworn testimony of the complainant that the events in question never happened, the habeas court’s finding that no reasonable juror could have found applicant guilty is supported by the record. Without the finding of guilt, applicant would not have been put in the position, during the punishment phase of the trial, of having to apologize for an offense he did not commit, nor would he have felt the need to “plead the Fifth” in order to avoid perjuring himself on the witness stand. OPINION:Cheryl A. Johnson, J., delivered the opinion of the court, joined by Meyers, Price, Womack, Holcomb, and Cochran, JJ. Cochran, J., filed a concurring opinion, joined by Holcomb, J. Hervey, J., filed a dissenting opinion, joined by Keller, P.J., and Keasler, J. CONCURRENCE:Cathy Cochran, J. “[B]oth the trial court and this Court have important, overlapping roles in determining whether an applicant has unquestionably established his innocence based on newly discovered evidence. The jury’s verdict in the original trial is entitled to great deference, but it is not such a shibboleth that the judicial system is required to turn a deaf ear and close the door against truly persuasive and credible evidence of actual innocence which, had the original jury heard it, would necessarily have acquitted the applicant.” DISSENT:Barbara P. Hervey, J. “I respectfully dissent because this Court’s evolving”actual innocence’ jurisprudence is irreconcilable with and has eviscerated most of this Court’s decision in Ex parte Elizondo, 947 S.W.2d 202 (Tex.Cr.App. 1996).”

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